Scott Alfred. Rogers et al.

Patent Trials and Appeals Board

Apr 7, 2020

13568710 - (D) (P.T.A.B. Apr. 7, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/568,710 08/07/2012 Scott Alfred Rogers 11006S-US-NP 8788
8015 7590 04/07/2020
CYTEC INDUSTRIES INC.
1937 WEST MAIN STREET
STAMFORD, CT 06902
EXAMINER
GILLETT, JENNIFER ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
04/07/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Cheryle.Telesco@solvay.com
StamfordPatent@solvay.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex Parte SCOTT ALFRED ROGERS and JAMES FRANCIS PRATTE
____________________

Appeal 2018-008033
Application 13/568,710
Technology Center 1700
____________________

Before MICHELLE N. ANKENBRAND, AVELYN M. ROSS, and
BRIAN D. RANGE, Administrative Patent Judges.

ROSS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3–5 and 10. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 In our Decision we refer to the Specification filed August 7, 2012
(“Spec.”), the Final Office Action appealed from dated July 28, 2017
(“Final”), the Appeal Brief filed January 2, 2018 (“Appeal Br.”), the
Examiner’s Answer dated May 30, 2018 (“Ans.”), and the Reply Brief filed
July 30, 2018 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Cytec
Technology Corp. Appeal Br. 2.
Appeal 2018-008033
Application 13/568,710
2
STATEMENT OF THE CASE
The subject matter on appeal generally relates to improved
thermoplastic composite laminates and more specifically to composite
laminate structures “having at least one structural layer composed of
reinforcing fibers impregnated with a thermoplastic resin matrix, and at least
one toughening layer on a surface of the structural layer.” Spec. ¶ 6. “The
toughening layer is configured to create an interlaminar region in a
composite laminate and may take the form of a polymer film, woven or non-
woven fibrous materials, free particles, a polymer layer or non-woven veil
with toughening particles dispersed therein, unimpregnated or impregnated
metal mesh or foil.” Id. The toughening layers are stacked between
structural layers. Id. ¶ 7. “Due to this configuration, the CAI [compression
after impact] of the composite laminate, upon consolidation, is greater than
the same laminate without the toughening layers.” Id.
Claim 1, reproduced below, is the sole independent claim and is
illustrative of the claimed subject matter:
l. A thermoplastic composite laminate comprising:
a plurality of structural layers in a stacking
arrangement, each structural layer comprising continuous
reinforcing fibers impregnated with a thermoplastic matrix
resin-consisting essentially of polyaryletherketone
(PAEK) polymer; and
a plurality of interlaminar regions, each being
formed between two adjacent structural layers, wherein
each interlaminar region comprises a mixture of different
PAEK particles having different melting points, said
particles having particle size of greater than 3 microns.
Appeal Br. 7 (Claims App’x).
Appeal 2018-008033
Application 13/568,710
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REJECTION
On appeal, the Examiner maintains3 the rejection of claims 1, 3–5,
and 10 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Maskell,4 as evidenced by Teijin.5 Id. at 3.

Appellant argues independent claim 1, and does not present separate
argument in support of any dependent claim. See generally id. Therefore,
consistent with the provisions of 37 C.F.R. § 41.37(c)(1)(iv) (2013), we limit
our discussion to claim 1, and all other claims stand or fall together with
claim from which it depends.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections . . . .”)). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we
determine Appellant’s arguments do not persuade us that the Examiner
reversibly erred.
We add the following.

3 Appellant does not appeal claim 8. Appeal Br. 3; see Ans. 3
(acknowledging Appellant does not appeal claim 8). We, therefore, do not
address claim 8 in this decision. In the event of further prosecution, the
Examiner’s rejections of claim 8 under both 35 U.S.C. § 103 and § 112 may
be maintained. Final Act. 2–3.
4 WO 2009/032809 A1, published Mar. 12, 2009.
5 Toho Tenax Continuous Carbon Fiber Nomenclature, Teijin (2008).
Appeal 2018-008033
Application 13/568,710
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The Examiner rejects claims 1, 3–5, and 10 as obvious in view of
Maskell, as evidenced by Teijin. Final Act. 3; Ans. 3. The Examiner finds
that Maskell describes a composite laminate material, made from
thermoplastic prepregs with reinforcing fibers impregnated within the
thermoplastic resin and layered in a stacking arrangement. Final Act.3–4;
Ans. 6. The thermoplastic of Maskell may be a polyaryletherketone
(“PAEK”). Final Act. 4; Ans. 6. The Examiner further finds that Maskell
describes interlaminar regions that are interleafed between the structural
layers, the structural layers may be made of polyether ether ketone
(“PEEK”), polyether ketone ketone (“PEKK”), or copolymers thereof, and
the particle size of the PAEK polymer resin ranges from about 1 to 150 µm.
Final Act. 4; Ans. 6. The Examiner also finds that PEEK, PEKK, and their
copolymers have different melting points. Final Act. 4; Ans. 6–7 (citing
Kemmish6 to evidence inherent properties, i.e., the melting points, of PEEK
and PEKK). The Examiner also explains that “Maskell teaches the use of
unidirectional fabric . . . with carbon fibers IMS 12k as reinforcement fibers
. . . , which are known in the art as continuous fibers as evidenced by
Teijin.” Final Act. 4. The Examiner acknowledges that “Maskell does not
appear to explicitly teach a specific embodiment using a polyaryletherketone
matrix with the continuous reinforcement fibers.” Id. at 4–5. But, the
Examiner reasons that it would have been obvious to one skilled in the art to
use unidirectional reinforcement fibers with a PAEK thermoplastic matrix
because the skilled artisan would be “motivated by the desire of using
predictably suitable reinforcement fibers, resin matrix, and interleaf tailoring

6 David J. Kemmish, Practical Guide to High Performance Engineering
Plastics (2011) (“Kemmish”).
Appeal 2018-008033
Application 13/568,710
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techniques as taught by Maskell as well as the desire to successfully practice
the invention of the prior art based on the totality of the teachings of the
prior art.” Id.
Appellant disputes the Examiner’s findings and asserts that “the
Examiner fails to explain why the limitation ‘a mixture of different PAEK
particles having different melting points’ recited in claim 1 would have been
obvious based on [Maskell]” because Maskell “does not disclose or suggest
incorporating a mixture of different PAEK particles having different melting
points at the interlaminar region between adjacent fiber-reinforced
thermoplastic layers” and the “Examiner’s conclusion that different
materials would have different melting points does not establish
obviousness.” Appeal Br. 4. Appellant also contends that because the
examples are limited to thermoset prepreg materials and thermoplastic
polymer systems are very different than thermoset systems, Maskell fails to
provide the necessary support for one skilled in the art to select the particular
elements as claimed in claim 1. Id. at 4–5.
On this record, we are not persuaded the Examiner reversibly erred.
We determine that the Examiner has shown by a preponderance of the
evidence that the resin mixture may comprise either thermoset or
thermoplastic materials. Final Act. 3–4. In particular, Maskell states
“[p]repeg materials can be selected from thermoset prepreg[s], thermoplastic
prepregs, resin infused textiles and preforms and combinations thereof.”
Maskell ¶ 24; see also id. ¶¶ 48 (“The particles can also be a blend of
thermoplastic and thermoset resins, elastomers and crosslinked
elastomers.”), 61 (“any resin matrix used in the present invention can
comprise or consist essentially of a thermoplastic or a thermosetting resin”),
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67 (“A resin matrix can also be a thermoplastic resin.”). Maskell also states
that reinforcing fibers may be included in the resin matrix to improve
resistance to “microbuckling and kinkband formation.” Id. ¶ 33; see also id.
¶ 39 (stating that one method to improve CAI is to modify the interface
between the resin matrix and the reinforcing fibers); Final Act. 4 (citing
Maskell ¶¶ 43–45); Ans. 4 (citing Maskell ¶¶ 54, 79). Furthermore, the
preponderance of the evidence supports the Examiner’s finding that Maskell
describes interlaminar regions (or toughening layers) comprising different
PAEK particles having different melting points. See Final Act. 4; Ans. 6.
For example, Maskell explains that “either or both of the prepreg materials
may also contain one or more types of particles.” Maskell ¶ 46 (emphasis
added). Maskell continues to explain that “[t]he particles can be made of
one or more resins selected from a group consisting of . . . polyether ether
ketones, polyether ketone ketones, . . . and co-polymers thereof.” Id.
(emphasis added); see id. ¶ 67, claim 7 (same). The Examiner explains that
PEEK and PEKK are both known PAEK particles. See Appeal Br. 7
(Claims Appx. (claim 5)). The Examiner further explains that PEEK and
PEKK are different materials and “the melting point of the particles would
have different melting points,” as Kemmish evidences.7 Final Act. 4; Ans. 7
(reproducing Table 5.1 of Kemmish detailing several properties of different

7 We note Appellant’s position that the Examiner’s reliance on Kemmish
amounts to a new ground of rejection because it “relies on a new piece of
evidence . . . which was not presented previously.” Reply Br. 2. We
disagree. The Examiner relies on Kemmish to evidence an inherent property
existing between different PAEKs. Ans. 7. As a result, the Examiner relies
on the same factual findings and reasoning previously raised in the Final
Action.
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Application 13/568,710
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PAEKs). Accordingly, Appellant’s argument is not persuasive in light of the
Examiner’s findings and the teachings of Maskell.
Appellant’s additional argument that Maskell would not have
suggested to the skilled artisan using a thermoplastic system as claimed
because Maskell exemplifies only thermoset systems also is not persuasive.
“[A] reference is not limited to the disclosure of specific working
examples.” In re Mills, 470 F.2d 649, 651 (CCPA 1972); see also In re
Burckel, 592 F.2d 1175, 1179 (CCPA 1979) (“[A] reference must be
considered not only for what it expressly teaches, but also for what it fairly
suggests.”). And, the fact that the disclosed examples may be limited to a
particular embodiment does not constitute a teaching away from a broader
disclosure. In re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971).
As the Examiner finds, Maskell clearly indicates its composite
materials may be used in a thermoplastic system. Final Act. 3–4; Ans. 6.
Maskell expressly states that “[p]repreg materials can be selected from
thermoset prepreg, thermoplastic prepregs, resin infused textiles and
preforms and combinations thereof.” Maskell ¶ 24. Maskell continues and
states that “any resin matrix used in the present invention can comprise or
consist essentially of a thermoplastic or a thermosetting resin.” Id. ¶ 61
(emphasis added); see also id. ¶ 67 (“A resin matrix can also be a
thermoplastic resin.”). And Maskell identifies PEEK—a
polyaryletherketone or PAEK—as a suitable thermoplastic. Id. ¶ 67.
Maskell further explains that use of thermoplastics in the resin matrix
improves CAI—the same purpose detailed in the instant Specification.
Compare id. ¶¶ 38, 45, with Spec. ¶¶ 4–5, 15, 62; see Final Act. 6 (citing
Maskell ¶¶ 38–39); Ans. 10 (citing Maskell ¶¶ 5–7, 38). Although Maskell
Appeal 2018-008033
Application 13/568,710
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exemplifies use of thermosetting resins, such disclosure is merely exemplary
and, without more, does not negate Maskell’s broad teaching that either
thermoplastic or thermosetting resins may be used to practice its invention.
See In re Preda, 401 F.2d 825, 826 (CCPA 1968) (explaining that a prior art
reference’s disclosure must be considered for all that it teaches, including
“the inferences which one skilled in the art would reasonably be expected to
draw therefrom”).
We, therefore, sustain the Examiner’s rejection of claims 1, 3–5,
and 10.
CONCLUSION
Appellant failed to identify a reversible error in the Examiner’s
rejection of claims 1, 3–5, and 10 under 35 U.S.C. § 103(a) as unpatentable
over Maskell as evidenced by Teijin.
DECISION
For the above reasons, the Examiner’s rejection of claims 1, 3–5, and
10 is affirmed as summarized below.
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5, 10 103(a) Maskell, Teijin 1, 3–5, 10
Overall
Outcome
1, 3–5, 10

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED